Lethal in­jec­tion’s le­gal­ity weighed

Septem­ber, main­tains the pre­vi­ous ap­proach for lethal in­jec­tion: a seda­tive to ren­der the in­mate un­con­scious; a sec­ond drug to par­a­lyze him; and a third to stop his heart.

But the pro­to­col in­cludes a much higher dose of the seda­tive mi­da­zo­lam. When Lock­ett was ex­e­cuted, 100 mil­ligrams of the seda­tive were sup­posed to be in­jected; the state now says it will use 500 mg of mi­da­zo­lam.

In her dis­sent last week in Warner’s case, Jus­tice Sonia So­tomayor said she was con­cerned about Ok­la­homa’s use of mi­da­zo­lam as the first drug in the process. Although lower courts found the drug would work as in­tended, she said that was “dif­fi­cult to ac­cept given re­cent ex­pe­ri­ence.”

So­tomayor noted tes­ti­mony that in­di­cated the ap­pli­ca­tion of the par­a­lytic drug might ren­der mi­da­zo­lam in­ef­fec­tive, but that it would be im­pos­si­ble to know whether the in­mate was con­scious.

Joined by Jus­tices Ruth Bader Gins­burg, Stephen Breyer and Elena Ka­gan, So­tomayor added: “Pe­ti­tion­ers have com­mit­ted hor­rific crimes, and should be pun­ished. But the Eighth Amend­ment guar­an­tees that no one should be sub­jected to an ex­e­cu­tion that causes sear­ing, un­nec­es­sary pain be­fore death.”

Dale Baich, one of the at­tor­neys rep­re­sent­ing the Ok­la­homa death-row pris­on­ers, said the “lethal-in­jec­tion land­scape” has changed sig­nif­i­cantly since the court’s 2008 Baze v. Rees decision.

“The drug pro­to­col used in Ok­la­homa is not ca­pa­ble of pro­duc­ing a hu­mane ex­e­cu­tion, even if it is ad­min­is­tered prop­erly,” he said.

A dis­trict court and panel of the U.S. Court of Ap­peals for the 10th Cir­cuit found oth­er­wise. Last week’s ex­e­cu­tion of Warner, who was put to death for rap­ing and killing an 11-month- old girl, was car­ried out with­out much in­ci­dent, wit­nesses said, although as the process be­gan, Warner said, “My body is on fire.”

Be­fore his ex­e­cu­tion, Warner was one of the par­ties pe­ti­tion­ing the court to re­view lethal in­jec­tion.

Also last week, Florida, which has used mi­da­zo­lam in ex­e­cu­tions since 2013, ex­e­cuted Johnny Kor­mondy, who was con­victed of killing a banker and rap­ing his wife in 1993.

Mi­da­zo­lam was in­volved in three prob­lem­atic ex­e­cu­tions last year, rais­ing con­cerns among civil lib­er­ties groups and at­tor­neys for death-row in­mates.

In Ohio, where wit­nesses said the in­mate choked and gasped, of­fi­cials an­nounced this month they would no longer use a com­bi­na­tion of the drugs mi­da­zo­lam and hy­dro­mor­phone. The state also said it would have to de­lay an ex­e­cu­tion sched­uled for next month, and pos­si­bly oth­ers, while it tries to ob­tain the drugs it hopes to use in the fu­ture.

Deb­o­rah Denno, a Ford­ham Univer­sity pro­fes­sor who stud­ies the death penalty and has been crit­i­cal of lethal in­jec­tion, said in a tele­phone in­ter­view the court’s in­ter­ven­tion was wise, since there are so many forms of the tech­nique be­ing used.

“Even though they’re all lethal in­jec­tions, they’re all dif­fer­ent kinds of ex­e­cu­tions,” Denno said. “We’ve never had any­thing like this in the his­tory of this coun­try, in the his­tory of the death penalty.”

The prob­lems fac­ing places with lethal in­jec­tion

SUE OGROCKI / THE AS­SO­CI­ATED PRESS FILES

An Ok­la­homa ex­e­cu­tion cham­ber. The botched ex­e­cu­tion of Clayton Lock­ett (be­low) in that state sparked ob­jec­tions.